QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| ROBERT FIDLER
|- and -
|(1) FIRST SECRETARY OF STATE
(2) REIGATE AND BANSTEAD BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Mould (instructed by the Treasury Solicitor) for the First Respondent
Crown Copyright ©
Mr Justice Richards:
"(1) For the purposes of this Act -
(a) carrying out development without the required planning permission
constitutes a breach of planning control.
(2) For the purposes of this Act -
(a) the issue of an enforcement notice (defined in section 172)
constitutes taking enforcement action."
"(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.
(4) The preceding subsections do not prevent -
(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach."
"(11) Where -
(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and
(b) all the requirements of the notice have been complied with,
then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."
"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted ;
(b) that those matters have not occurred;
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters."
"(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall -
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matters to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
(1) The second bite issue
"When section 171B is read as a whole it appears clear that the section is concerning itself with breaches of planning control and the time limits applicable when enforcing against these breaches.
Various types of planning control relating to different types of development are referred to in the section. What the section is concerned with are the various acts of development that constitute the breaches of control, not the description of the substantive activities. It is the subject matter of the enforcement notice, the actual development that is being referred to by the words 'that breach', rather than the words that have been used to characterise the development, that constitutes the breach of planning control. The description of a breach cannot in itself be a breach of planning control. What this proper interpretation means is that the sub-section cannot be used to cover two different physical developments or two different changes of use, but it can be used to cover the same actual breach of development control, which is described in different ways.
This interpretation is clear enough from the wording of the section, but is also apt for illustration by the facts of this case. The facts of the situation are that a permanent dwelling house had been constructed without planning permission by 12 April 1993. That constituted a breach of planning control. Such a breach is identified in section 171B(1). The local planning authority purported (note that that is the word used in section 171B(4)(b)) to enforce against that physical development, a dwelling house construction, but, mistakenly, did not appreciate that the development carried out was a permanent dwelling house; they therefore described the breach as a mobile home still on site in breach of the time-limit condition. That mistake did not change the nature of the breach of planning control, which was still construction of a permanent dwelling house without planning permission and it was plainly against that physical development that the local planning authority had purported to enforce. When they learned of their mistake they correctly described the breach of planning control in a new enforcement notice, but it was still the same physical development construction that had always been the only breach of planning control under consideration, and, therefore, the second enforcement notice was enabled by the subsection and the inspector was correct in taking this approach.
This interpretation is also consistent with the purposes of the section which, as can be seen in the general note to the subsection in Vol 2 of the Planning Encyclopaedia (2-3598/1), removed the protection given to developers in previous legislation who succeeded in establishing technical errors in enforcement notices while time continued to run, so that cases arose when time for service of an enforcement notice without the defect had elapsed."
"Anyone who had any experience of the operation of the former law relating to the enforcement of planning control knows that it was disfigured by time-consuming litigation over technicalities, raised by determined litigants who sought to evade the effects of enforcement action taken against them by local planning authorities on behalf of their local communities.
From time to time, there were judicial explosions on the topic. Among these, the most colourful was that of Templeman J in 1974, and the most resigned that of Mr Graham Eyre QC, sitting as a deputy high court judge in 1988.
In Eldon Garages Ltd v Kingston upon Hull County Borough Council  1 All ER 358, Templeman J ended his 18-page judgment at p375B with these words:
The result of this submission, if I acceded to it, would be that the enforcement notice is a kind of spell by a witch doctor and unless the witch doctor gets the exact words of the incantation right, then the spell does not work. Well, although, as the House of Lords pointed out, one has got to be very careful in these cases because of the individual rights involved, we have not yet got to that stage and I do not propose to begin getting near that stage That being so, it seems to me that I must dismiss this summons. This is not an enforcement notice which relates to Bleak House, and although counsel for the plaintiffs has argued this case very skilfully and has put forward every argument open to him, I intend no disrespect to him and no criticism of anybody when I say that it is time that the pettifogging was stopped and I dismiss this summons.
With a wearied resignation born of a professional lifetime of experience of all the difficulties posed by the existing law, Mr Graham Eyre QC said in West Oxfordshire District Council v Secretary of State for the Environment  JPL 324 at pp324-5:
It [is] perhaps remarkable that nearly four decades [have] passed since the enforcement notice machinery first emerged in the Town and Country Planning Act 1947 during which time the legislature [has] made substantial amendments to the statutory provisions so as to remove or substantially reduce the powers of the courts to interfere on technical grounds, and yet this court [has] been treated to a rehearsal of somewhat arid technicalities most of which [have] a ring of nostalgia, in its true sense, and largely unwelcome familiarity.
I am quite satisfied that one of parliament's main purposes in 1991, in overhauling Part II of the 1990 Act, was to spare those like Mr Eyre the pain of returning to those arid technicalities."
"It appears to me that if we were to allow this appeal, we would be in danger of allowing enforcement law to return, in part, to the world of pettifoggery and arid technicalities that attracted such strong judicial disapprobation in the 1970s and 1980s. In my judgment, this court ought to be very slow to depart from the approach to the interpretation of section 171B(4)(b) that was adopted by a deputy judge with great experience in the planning field. He was satisfied that the relevant breach of planning control consisted of the erection of the unauthorised structure in the position marked on the plan attached to the enforcement notice. The council purported to take enforcement action in respect of that breach by their first notice, but failed to do so because they misdescribed the breach. They were therefore entitled by section 171B(4)(b) to take further enforcement action because four years had not elapsed since the date of the earlier purported action."
"For the reasons given by Roch and Brooke LJJ, I agree that this appeal fails. To allow it would be to set a premium once more on technical challenges to enforcement notices that have misled nobody. It would also, in a case like the present one, be to reward conduct that, at best, was devious and, at worst, deceitful. As is apparent from the account given by Roch LJ, the appellant continued to claim that he had a mobile home on the site for as long as it suited him to do so. Then, when he thought the time was up for enforcement, he asserted that it was a permanent structure. When one looks in the unaccountable absence of photographs at his account of what he had done to the mobile home, it becomes easier to see why the council's officials were taken in. He had, by his own account, set the structure on timbers, thereby presumably elevating it from the ground; he had put on a board and felt roof; and he had retrieved other, unspecified, materials 'for use in the construction'.
It would make a farce of the legislation if, by claiming that one unlawful use was a different unlawful use, a landowner could take advantage of the four-year limit and acquire immunity from process for something he had known all along was unlawful. Miss Lieven's submission has satisfied me that to read the legislation as eschewing form in favour of substance does not give a slack local authority, at least in certain instances, an unintended length of time in which to get their notice right. The second notice must not only relate to the same facts as constitute the breach to which the first notice related, but must be served within the period for which the first one is to be taken to have been good, namely four years."
"27.The problem, in my opinion, is in the allegations as set out in the Notices; each alleges a 'change of use of the land involving the change of use of ' either a particular building or all the open area outside of the buildings. I consider the Notices are not invalid on their face but the allegations are too vague to be upheld as issued. They do not specify what material change of use has taken place nor include all the uses that are taking place within the planning unit; be it the one as delineated on the plan attached to the Notices B, D and E or the smaller area delineated on Notice I (which both parties agreed, at the resumption of the inquiry in May, was the correct planning unit at which all the Notices should be aimed).
28. As to the correction of the Notices, clearly I have wide powers of correction and can do so as long as there would be no injustice. Submissions were made regarding this and the possibility of amalgamating the Notices at the inquiry, in writing during the adjournment and also in closing submissions. The appellant argued that if I corrected the Notices there would be people/businesses who had not appealed against them because they did not think the Notices concerned them and they could not appeal now. Additionally, there were buildings (eg units 6 and 7) and some users of the open yard not covered by the Notices as issued but they would be affected if the Notices were corrected to include all the relevant uses in the description and, consequently, the requirements.
29. The Council in closing submissions accepted this point but submitted that the issue of Notice I had resolved the matter as everyone had now been served with a copy of the Notice and had the opportunity to lodge an appeal. Further, it was submitted that as the intention of Notice I was the same as B, D and E there would be no injustice if they were corrected, nor if they were amalgamated into one Notice. Whilst I agree that the site owner/appellant could not really be in any doubt as to what the Notices were aimed at, it does not get over the fundamental point that the Notices are vague. In correcting them either individually or by amalgamation, I consider that their scope would be widened; other buildings, uses and users would be affected by them and I conclude, therefore, that in those circumstances there would be injustice. I will, therefore, quash Notices B, D and E"
"30.The appellant argued that Notice I could not be considered as a second bite notice as it was for a fundamentally different allegation. I acknowledge that the area included in Notice I is different and also that the allegation itself following the general agreement reached at the inquiry about how it ought to be corrected (and set out in Section A.c above) is different. There is also the possibility that it needs further correction after considering the evidence in detail on the relevant ground (c) and (d) appeals.
31. On the first two days of the inquiry there were numerous legal submissions including those regarding the validity of the Notices B, D and E in particular. I am clear from all the evidence put forward that the Council were trying to achieve the cessation of all those uses at the site which did not have planning permission or could not be proved to be lawful and I have no doubt that the appellant (who was also the site owner) was aware that the notices were issued with that intent. I have concluded that the Council had not made the right allegations and I could not correct them without causing some injustice. However, both during the opening two days of the inquiry, when the Council, during an adjournment, tried to produce an amalgamated Notice and since then the Council have tried to get the allegation right. That resulted in the issue of Notice I and whilst as originally worded it was still unacceptable, I consider it can be corrected (as set out in Section A.c).
32. In these circumstances I consider that it does purport to relate to the same breach of planning control even though the uses in Units 6 and 7 were not included in the earlier Notices; some of the occupiers were also not included in the earlier Notices but I am satisfied that the uses were, bearing in mind the wide reaching wording of the allegations. I will therefore, deal with Notice I on the basis that it is a 'second bite notice' and, in my opinion, it supersedes Notices B, D and E (which, I have already concluded should be quashed) wording correctly the allegations that those three Notices were aimed at."
(2) The material change of use issue
"From March 1991 the area used for the various uses increased by just over 50% by March 2001, in my view a considerable increase. In terms of the appearance of the land it also resulted in open storage taking place on land to the north of the building [T]he size of the main covered area was basically doubled when unit 9 was added to unit 10 later in the same year and it was generally used for non agricultural purposes from day one . Then in 1998 the whole structure was virtually rebuilt and it again changed totally in character in my view, particularly in how it could be used. What had been basically a 'Dutch barn' with open ends and some corrugated sheeting on the two side elevations of a plain steel framework was turned into a purpose built industrial type building (despite the corrugated cladding on the outside which can also be found on a modern agricultural building) with block work walls and partitions, including some first floor sections, and much of it with a proper concrete floor. The changes in the type of space offered for rent after the 1998 alterations, in my view, facilitated a change in the type of use there. It changed from a basically 'open' covered area under the roof of units 9 and 10 to one that provided secure, weatherproof storage on a large scale that would not have been possible in the old units 9 and 10. Further, it has resulted in the occupation by 2 companies specialising in the delivery of parcels which have more vehicles and staff on site than most and the establishment of a company which also has many staff and vehicles on site . It was not disputed that these three occupiers had a higher generation of traffic to and from the site than others nor was the answer that there had been more than a doubling of traffic movements at the site in the three years 1999 to 2002 . This has also resulted, in my view, in a materially different character of use at the site . I acknowledge that the number of occupiers has remained fairly constant over the relevant period . I also consider that the various uses undertaken by those occupiers have not, in principle, been different in terms of the number of uses that have been taking place at any one time and the general description of what they did . Some uses that were there at the start of 1991 ceased; others commenced during the 1990s and some were there for just short periods . The sorts of vehicles, materials and equipment stored/parked at the site by them was not that different to other existing occupants so there was not, in my view, a material difference there. However, I consider that the situation changed after 1998 when the major building alterations were carried out ."
"94.In my view, there were fundamental changes at the appeal site between March 1991 and March 2001. These were the increase in the land area covered by the use; the increase in building mass and, therefore, the consequent increase in the amount of usable covered floor space; the large increase in the area of outside storage; the virtual rebuilding of units 9 and 10 almost as purpose built commercial buildings; the nature of the more recent occupiers of the site, in particular, of the buildings, and also the level of traffic associated with the various uses and occupiers of the site particularly the more recent tenants.
95. The changes summarised above have resulted in a mixed use that is undertaken on a much larger area. The mixed use in March 2001 was not actually on the same site at all as that in March 1991 but on a land area that had grown by over 50%, the increase in area taking place through increases on two different occasions. The new area taken into the planning unit had been in agricultural use and, in my opinion, the planning unit as it was in March 2001 had only existed since late 1994 or early 1995 at the earliest. Even if my conclusion is wrong on that as a point of law, ie., the simple increase in the size of the unit is not sufficient to preclude a success on ground (d), there are still the other changes to take into account.
96. The first increase in the size of the planning unit in 1991 was also large at about 0.1 hectares but that increase in area facilitated the building of the large extension that became known as unit 9; about 40% of its floor space was in the extended site. Taken together with the unit 9 extension, my opinion is that the site, even as first enlarged, late in 1991, resulted in a material change in the appearance of the land through the increased level of outside storage, the increased use taking place in an enlarged building and the alterations to the building itself which had approximately doubled in size with an extension of nearly 1100 square metres floor space.
97. There were then the further changes to the buildings in 1998. Units 9 and 10 were virtually rebuilt around their framework skeleton and some of the existing sheeting/panelling that formed the walls and roof. They became what I would describe as a complete building with four solid walls and a roof, numerous solid internal partition walls and even some first floor accommodation. Use of the site, in my view, became far more intensive because of these changes as I believe the photographs taken over a long period showed, particularly regarding the level of storage both outside and inside the buildings.
98. The 1998 changes to the buildings and the different occupiers that came, in my view, as a result of the more permanent and secure space available, also led (and still does) to a far higher level of traffic to and from the site than experienced before, both in terms of staff and business vehicles. This mainly came through the introduction, not long before the issue of the Notice I, of some different types of uses (in particular the corporate games organiser and the two courier companies) with materially greater traffic generation than the uses that had been there before.
99. Whilst I accept that it might not be possible to say that any one of these changes by itself resulted in the material change in the use of the site, I consider, as a matter of fact and degree, that the use at 7 March 2001 was materially different to that which had existed on 7 March 1991. It was not just a more intensive use of the site but one where the activities making up the uses, the land area used; the extent of storage, both inside and outside; the buildings in which the uses were being undertaken and the level of traffic generated, if all taken together, describe a use that is materially different in character and nature.
100.I conclude, on the basis of the evidence that was put before me, that those changes were so significant that the mixed use there at the time the Notice was issued had, by its very different nature and character, come about through a material change of use from the use which had been there on 7 March 1991."
(3) The previously established lawful use issue
"104.The Council's planning witness accepted that the use of the site for hay and straw dealing and agricultural contracting was lawful; it had gained that lawfulness in July 1992 having commenced 10 years before that date. The appellant also only referred to these two uses as being lawful, both in questions to his own planning witness and the Council's planning witness. These were the only alleged uses that the Council considered should not be required to cease other than agriculture which it was agreed was not 'development'
105. No similar point was put regarding the other uses that the appellant claimed to have carried out himself at the site and no detailed evidence was put forward regarding these other uses; that contained in the supplementary proof of the appellant's planning witness was really only diagrammatic in relation to where it took place and general in terms of the type of use taking place in a building or amongst the open storage. The appellant was also just one of a number of people/companies that carried out such uses which were all part of the mixed use which I have already concluded materially changed in the relevant 10 year period."
(4) The Notice A appeal issue
"119. There was some confusion about whether or not the building and its extension could have been erected as 'permitted development' for agricultural purposes and although the Council may have wrongly told the appellant this was the case at some time in the past, it was agreed that the buildings could not be permitted development due to the proximity of the site to an aerodrome and the size of the building involved. The appellant admitted in his evidence that it was formed from second hand industrial rather than agricultural buildings but I agree that currently there is little difference, with the same profiled steel sheeting often used for the cladding and roofing on both."
" I agree that the definition states that it is not development if works for the maintenance, improvement or other alteration of a building are works which firstly, affect only the interior of the building and secondly, do not materially effect [sic] the external appearance of the building."
(5) The deemed planning permission issue
" The enforcement notice manifestly did not allege that construction of the culvert had been carried out in breach of planning control. In those circumstances the enforcement notice could not have required the removal of the culvert. In those circumstances section 173(11) is not in play and there is no question of any deemed planning permission for the culvert ."